The Natural-Law Doctrine Before the Tribunal of Science
| Author | Hans Kelsen |
| DOI | 10.1177/106591294900200401 |
| Published date | 01 December 1949 |
| Date | 01 December 1949 |
| Subject Matter | Articles |
481
The
Western
Political
Quarterly
THE
NATURAL-LAW
DOCTRINE
BEFORE
THE
TRIBUNAL
OF
SCIENCE
HANS
KELSEN
University
of
California
I
HE
NATURAL-LAVU
doctrine
undertakes
to
supply
a
definitive
solution
to
the
eternal
problem
of
justice,
to
answer
the
question
as
to
what
is
right
and
wrong
in
the
mutual
relations
of
men.
The
answer
is
based
on
the
assumption
that
it is
possible
to
distinguish
between
human
behavior
which
is
natural,
that
is
to
say
which
corresponds
to
na-
ture
because
it is
required
by
nature,
and
human
behavior
which
is
un-
natural,
hence
contrary
to
nature
and
forbidden
by
nature.
This
assump-
tion
implies
that
it
is
possible
to
deduce
from
nature,
that
is
to
say
from
the
nature
of
man,
from
the
nature
of
society
and
even
from
the
nature
of
things
certain
rules
which
provide
an
altogether
adequate
prescription
for
human
behavior,
that
by
a
careful
examination
of
the
facts
of
nature
we
can
find
the
just
solution
of
our
social
problems.
Nature
is
conceived
of
.
as
a
legislator,
the
supreme
legislator.
This
view
presupposes
that
natural
phenomena
are
directed
towards
an
end
or
shaped
by
a
purpose,
that
natural
processes
or
nature
con-
ceived
of
as
a
whole
is
determined
by
final
causes.
It
is
a
thoroughly
teleological
view,
and
as
such
does
not
differ
from
the
idea
that
nature
is
endowed
with
will
and
intelligence.
This
implies
that
nature
is
a
kind
of
superhuman
personal
being,
an
authority
to
which
man
owes
obedience.
At
the
lowest
stage
of
human
civilization this
interpretation
.
of
nature
manifests
itself
in
so-called
animism.
Primitive
man
believes
that
natural
things
-
animals,
plants,
rivers,
the
stars
in
the
sky
-
are
animated,
that
spirits
or
souls
dwell
within
or
behind
these
phenomena
and
that
consequently
these
things
react
towards
man
like
personal
beings
according
to
the
same
principles
that
determine
the
relations
of
man
to
482
his
fellow-men.
It
is
a
social
interpretation
of
nature,
for
primitive
man
con-
siders
nature
to
be
a
part
of
his
society.
Since
the
spirits
or
souls
animat-
ing
the
natural
phenomena
are
believed
to
be
very
powerful
and
able
to
harm
as
well
as
to
protect
man,
they
must
be
worshipped.
Animism
is
consequently
a
religious
interpretation
of
nature.
At
a
higher
stage
of
re-
ligious
evolution,
when
animism
is
replaced
by
monotheism,
nature
is
con-
ceived
of
as
having
been
created
by
God
and
is
therefore
regarded
as
a
manifestation
of
His
all
powerful
and
just
will.
If
the
natural-law
doctrine
is
consistent,
it
must
assume
a
religious
character.
It
can
deduce
from
na-
ture
just
rules
of
human
behavior
only
because
and
insofar
as
nature
is
con-
ceived
of
as
a
revelation
of
God’s
will,
so
that
examining
nature
amounts
to
exploring
God’s
will.
As
a
matter
of
fact,
there
is
no
natural-law
doctrine
of
any
importance
which
has
not
an
essentially
religious
character.
Grotius,
for
example,
defines
the
law
of
nature
as
a
dictate
of rational
nature
by
which
certain
acts
are
forbidden
or
enjoined
&dquo;by
the
authority
of
nature,
God.&dquo;
1 He
states
that
the
law
of
nature
proceeding
from
the
&dquo;essential
traits
implanted
in
man
can
rightly
be
attributed
to
God,
be-
cause
of
His
having
willed
that
such
traits
exist
in
us
According
to
Hobbes,
the
law
of
nature
is
a
dictate
of
reason,
but
the
dictates
of
reason
are
&dquo;but
conclusions,
or
theorems
concerning
what
conduces
to
the
con-
servation
and
defense
of
men;
whereas
law
properly
is
the
word
of
him
that
by
right
has
command
over
others.
But
yet
if
we
consider
the
same
theorems,
as
delivered
in
the
word
of
God,
that
by
right
commands
all
things,
then
are
they
properly
called
laws.&dquo;3
Following
Hobbes,
Pufendorf
states
that
if
the
dictates
of
reason
-
that
is,
the
principles
of
natural
law
-
are
to
have
the
force
of
law
it
must
&dquo;under
all
circumstances
be
main-
tained
that
the
obligation
of
natural
law
is
of
God.&dquo;4
Only
thus
can
it
be
assumed
that
the
law
deduced
from
nature
is
an
eternal
and
immutable
law,
in
contradistinction
to
positive
law
which,
created
by
man,
is
only
a
temporary
and
changeable
order;
that
the
rights
established
by
natural
law
are
sacred
rights
inborn
in
man
because
implanted
in
man
by
a
divine
nature;
and
that
positive
law
can
neither
establish
nor
abolish
these
rights,
but
only
protect
them.
This
is
the
essence
of
the
natural-law
doctrine.
The
first
objection
which
must
be
made
from
the
point
of
view
of
science
is
that
this
doctrine
obliterates
the
essential
difference
which
exists
between
scientific
laws
of
nature,
the
rules
by
which
the
science
of
nature
describes
its
object,
and
the
rules
by
which
ethics
and
jurispru-
dence
describe
their
objects,
which
are
morality
and
law.
A
scientific
law
1
Hugo
Grotius,
De
Jure
Belli
Ac
Pacis,
Bk.
I,
chap.
i,
sec.
10.
2
Ibid.,
Prolegomena,
par.
12.
3
Thomas
Hobbes,
Leviathan,
Part
I,
chap.
xv.
4
Samuel
Pufendorf,
De
Jure
Naturae
et
Gentium,
Bk.
II,
chap.
iii,
sec.
20.
483
of
nature
is
the
rule
by
which
two
phenomena
are
connected
with
each
other
according
to
the
principle
of
causality,
that
is
to
say,
as
cause
and
effect.
Such
a
rule
is,
for
example,
the
statement
that
if
a
metallic
body
is
heated
it
expands.
The
relation
between
cause
and
effect,
whether
it
is
considered
as
a
relation
of
necessity
or
of
mere
probability,
is
not
at-
tributed
to
any
act
of
human
or
superhuman
will.
If
we
speak
of
moral-
ity
or
law,
on
the
other
hand,
we
refer
to
norms
prescribing
human
be,
havior,
norms
which
are
the
specific
significance
of
acts
of
human
or
super-
human
beings.
Such
a
norm
is,
for
instance,
the
moral
norm
issued
by
Christ
enjoining
that
one
help
a
fellow-man
in
need,
or a
legal
norm
issued
by
a
legislator
prescribing
punishment
for
a
murderer.
Ethics
describes
the
situation
which
exists
under
moral
norms
by
the
statement:
If
a
man
is
in
need,
his
fellow-men
ought
to
help
him;
jurisprudence
des-
cribes
the
situation
under
the
legal
norm:
If
a
man
commits
murder,
he
ought
to
be
punished.
It
is
evident
that
a
rule
of
morality
or a
rule
of
law
connects
the
condition
with
its
consequence,
not
according
to
the
principle
of
casuality,
but
according
to
a
totally
different
principle.
A
law
of
nature
is
a
statement
to
the
effect
that
if
there
is
A,
there
is
B,
whereas
a
rule
of
morality
or
a
rule
of
law
is
a
statement
to
the
effect
that
if
there
is
A,
there
ought
to
be
B.
It
is
the
difference
between
the
&dquo;is&dquo;
and
the
&dquo;ought,&dquo;
the
difference
between
causality
and
normativity.
If
we
presuppose
a
general
norm
prescribing
a
certain
type
of
hu-
man
behavior,
we
may
characterize
concrete
behavior
which
is
in
conformity
with
the
presupposed
norm
as
good,
right,
correct,
and
be-
havior
which
is
not
in
conformity
with
the
presupposed
norm,
as
wrong,
bad,
incorrect.
These
statements
are
called
value
judgments,
the
term
being
used
in
an
objective
sense.
Value,
in
this
sense
of
the
term,
is
conformity
with
a
presupposed
norm.
It
is
a
positive
value,
in
con-
tradistinction
to
a
negative
value,
which
is
non-conformity
with
a
pre-
supposed
norm.
Since
the
statement
that
the
concrete
behavior
of
a
definite
individual
is
good
or
bad,
or,
what
amounts
to
the
same,
has
a
positive
or
negative
value,
means
that
his
behavior
is
in
conformity
or
not
in
conformity
with
a
presupposed
general
norm,
we
may
express
this
value
judgment
by
the
statement
that
the
individual
ought
or
ought
not
to
behave
as
he
actually
does
behave.
Without
presupposing
a
gen-
eral
norm
prescribing
(or
forbidding)
something,
we
cannot
make
a
value
judgment
in
the
objective
sense
of
this
term.
The
value
attributed
to
an
object
is
not
given
with
the
properties
of
this
object
without
ref-
erence
to
a
presupposed
norm.
The
value
is
not
inherent
in
the
object
judged
as
valuable,
it
is
the
relation
of
this
object
to
a
presupposed
norm.
We
cannot
find
the
value
of
a
real
thing
or
of
actual
behavior
by
analyzing
these
objects.
Value
is
not
immanent
in
natural
reality.
Hence
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